Review of “The Second Amendment: A Biography” by Michael Waldman

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Michael Waldman is a professor of law at New York University. The Second Amendment: A Biography is an erudite and informative analysis of the history of the interpretation of that amendment by the Founding Fathers, the Supreme Court, and various legal scholars. Waldman states:

For 218 years, judges overwhelmingly concluded that the amendment authorized states to form militias….then in 2008, the U.S. Supreme Court upended two centuries of precedent. In…District of Columbia V. Heller [it] declared the Constitution confers a right to own a gun for self-defense in the home.”

On a literal level, this book is the story of how that change came about. On a “meta” level, it is a description of the process by which the constitution is interpreted, and how interpretations evolve over time. On a societal level, the content of this book is extremely important because of its ramifications on the power of the government, on any tier, to deal with the current spate of gun violence.

The Second Amendment has a curious grammatical construction:

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

How does the reference to “the militia” in the introductory phrase affect the interpretation of the amendment as a whole? Waldman’s historical analysis makes clear that the debates that preceded the adoption of the amendment were concerned with the role of the militia (what we would now call the National Guard), and had virtually nothing to say about an individual’s right “to keep and bear arms.” Moreover, the amendment says that the right to bear arms is that of the people (presumably acting in the context of the militia), not individuals. Ironically, it must be noted that the militias were composed of white males who were expected to supply their own weapons to participate in military training. Those men were not merely allowed to keep rifles; they were required to do so.

revolutionary_militia

In the late 18th century, most Americans feared the establishment of a standing army—that was what autocrats used to impinge on the liberty of their subjects. Local militias were generally thought to be adequate to protect the populace from insurrection or from marauding Native Americans. Remember that the Bill of Rights was adopted to curb the power of the federal government; it did not address the powers of the states. Views may have changed somewhat when in Shay’s Rebellion it was the local militia that had to be put down by the national army, led by George Washington.

Prior to the Civil War, most courts (with the exception of Kentucky’s) interpreted the scope of the amendment to be limited to the militia. A key was the phrase “bear arms” was understood to have a military meaning.

In the immediate aftermath of the Civil War, the Fourteenth Amendment was enacted, giving all persons the right to “equal protection” under the law. But that hardly mattered in the South. In 1872, the Louisiana gubernatorial race pitted a black candidate against a racist white Democrat. The results were contested, and members of both races formed rival militias. On Easter Sunday, the paramilitary White League captured and later massacred about 100 blacks. As was typical of the time, white state prosecutors saw no reason to bring criminal charges like murder against white defendants for killing blacks. But federal prosecutors charged numerous white defendants with violating the civil rights of the blacks, including the right to bear arms. Only three were convicted, and they appealed, ultimately reaching the U.S. Supreme Court in 1876. In U.S. v. Cruikshank, the Justices held that the Second Amendment (like the rest of the bill of Rights) applied only to Congress, and so no murdered blacks’ civil rights had been violated. The majority opinion neglected to mention that the case involved a massacre.

As a constitutional matter, the Cruikshank case ruled that the Second Amendment did not apply to the states. As a result, many states and local municipalities enacted gun control laws, some quite restrictive. In two cases 19th century cases, Presser v. Illinois and Miller v. Texas, the U.S. Supreme Court ruled that the Second Amendment did not have an individual right to carry weapons, although it did say that the states could not ban guns to the extent that it would interfere with the federal government’s military needs.

With the coming of the Prohibition Era, gun violence increased dramatically as rival gangs had to enforce their “contracts” without the aid of the courts. This led to the passage of the first federal gun legislation, the National Firearms Act of 1934, which heavily taxed machine guns and sawed-off shot guns and prohibited their transportation over state lines. The Supreme Court upheld the legislation in United States v. Miller. It noted that there was no evidence that a sawed-off shot gun “has some reasonable relationship to the preservation or efficiency of a well regulated militia [and so] we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”

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Gun regulation increased after the assassinations of John F. Kennedy, Martin Luther King, and Robert Kennedy. Congress passed the Gun Control Act of 1968, which required licensing of gun dealers and banned the importation of military style weapons. Chief Justice Warren Burger, no flaming liberal, characterized the argument that the amendment created an individual’s right to own a gun as follows:

This has been the subject of one of the greatest pieces of fraud, I repeat the word “fraud,” on the American public by special interest groups that I have ever seen in my lifetime. Now just look at those words. There are only three lines to that amendment. A well regulated militia—if the militia, which was going to be the state army, was going to be well regulated, why shouldn’t 16 and 17 and 18 or any other age persons be regulated in the use of arms the way an automobile is regulated? It’s got to be registered, that you can’t just deal with at will.”

In Waldman’s words, “There was no more settled view in constitutional law than that the Second Amendment did not protect an individual right to own a gun.”

But then came the conservative revolution. The National Rifle Association organized single issue voters to oppose candidates who favored gun regulation. It took on an “apocalyptic, insurrectionist tone.” Wayne LaPierre and Charlton Heston riled up the rank and file. In 1959 60% of Americans favored banning handguns; that dropped to 41% by 1975, and all the way to 24% in 2012.

But more insidiously, a group of conservative law professors and lawyers began to write articles arguing that an originalist approach to constitutional interpretation established an individual right—this despite the fact that (as Waldman shows) history and nearly all historians were against them. They added gravitas to their arguments by citing each other, having little or no legal precedent to rely on. More importantly, the political composition of the Supreme Court became more conservative with the appointments of Scalia, Thomas, Roberts, and Alito.

Supreme Court Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts

Supreme Court Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts

The process culminated in 2008 with the Heller decision, authored by Scalia. Waldman gives a blistering criticism of that opinion. He then shows that Richard Posner, perhaps the most respected jurist (both a judge on the Seventh Circuit Court of Appeals and a University of Chicago law professor) in America gave an even more scathing analysis of the Heller opinion in Chicago v. McDonald , a case in which Posner felt bound by Heller. Waldman calls Posner’s opinion “a masterpiece of passive aggression.”

In some way, Heller may actually help gun control advocates. It has taken away the NRA’s argument that the government is trying to take away their guns. Heller says it can’t do that. What it may be able to do is reasonable, limited regulation. And courts seem willing to uphold such regulation. However, Waldman muses that “it is clear that the gun issue is not one of evidence-based public safety policy, but of culture.” He opines that “as a legal matter, Heller may create space for reasonable gun regulation. As a matter of politics and culture, though, it can only deepen polarization.”

Waldman’s concluding chapter contains some very interesting observations, the most striking of which I quote below:

A full scan of American history shows that the public, fully engaged, has made constitutional law every bit as much as jurists and lawyers….[T]he reason the Court has pronounced that limited right [individual gun ownership] is not because the Framers of the Second Amendment intended it to confer it. (They didn’t.) Nor is it because of a dictionary from 1730, or a state court judicial interpretation from 1830, or even a Supreme Court case from 1939. Rather, it is because the people today believe there is such a right. The country has evolved—the Constitution is living, as it were—and the widespread acceptance of some form of gun ownership is part of the way Americans think. Not then, now. Heller can be justified not as originalism, but as something more rooted in common sense: it reflected a popular consensus won by focused activists.”

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Evaluation: This book brings a lot of light to some issues about which one often finds only heat. It should be read by all citizens concerned with gun violence and gun rights.

Note: For a satiric could-have-almost-happened take on the issue, see this humorous imagined conversation between James Madison and Thomas Jefferson from The New Yorker.

Rating: 4/5 stars

Published by Simon & Schuster, 2014

January 27, 1872 – Birthdate of Billings Learned Hand

Learned Hand was a United States judge sometimes called “the greatest judge never to sit on the Supreme Court.”

He served on the United States District Court for the Southern District of New York and later the United States Court of Appeals for the Second Circuit.

Learned Hand, Judge of United States Court of Appeals for the Second Circuit

Learned Hand, Judge of United States Court of Appeals for the Second Circuit

Hand majored in philosophy at Harvard College and graduated with honors from Harvard Law School. After a short career as a lawyer in New York, he was appointed at the age of 37 as a Federal District Judge in Manhattan in 1909. His decisions soon won him a reputation for craftsmanship and authority. In 1924, President Calvin Coolidge promoted Hand to the Court of Appeals for the Second Circuit, which he went on to lead as the Senior Circuit Judge (later retitled Chief Judge) from 1939 until his semi-retirement in 1951. Scholars have recognized the Second Circuit under Hand as one of the finest appeals courts in the country’s history. Friends and admirers often lobbied for Hand’s promotion to the Supreme Court, but, much to Hand’s own disappointment, his political past made a confirmation unlikely. Nevertheless, according to a 2004 book by legal scholar Geoffrey Stone, Hand has been quoted more often by legal scholars and by the Supreme Court of the United States than any other lower-court judge.

One of Hand’s law clerks, Thomas Ehrlich, wrote in a 1994 remembrance about what it was like to work with Judge Hand. He said that law clerks never did any writing for him, except to suggest changes in drafts. Instead, the clerks served another purpose:

…our routine went something like this. After we each read the briefs in a case, he would ask me to argue one side. He would urge opposing view. Sometimes, we would then switch sides. In all events, the Judge would move back and forth, making arguments and countering them in the process of refining and sharpening his views.” (“Judge Learned Hand” by Thomas Ehrlich, 20 Litigation 4, 1994, 35)

Hand believed in the protection of free speech and in bold legislation to address social and economic problems. But he felt strongly that judges should not deny the constitutionality of acts of Congress. Congress was comprised of the people’s elected representatives, and therefore it is right that they choose how we are to be governed. One wonders if he would have felt differently in recent times, when election has become so much more a function of access to assets. One also wonders what the law would have looked like now, had he been on the Supreme Court; he believed passionately, according to Ehrlich, “that disinterestedness was the essential quality of a good judge.”

Hand had a “fun” side, being fond of toys, jokes, and of singing. This rare video provides a sample of his voice.

January 13, 1794 – President Washington Approves An Act to Change the American Flag

On March 4, 1791, Vermont became the first state added to the union following the ratification of the U.S. Constitution. Kentucky joined the Union on June 1, 1792 and made the count fifteen.

On this day in history, President George Washington approved an act calling for the Flag of the United States to have fifteen stripes and fifteen stars, reflecting the admission of Vermont and Kentucky to the Union. (You can read The Flag Act of 1794 (1 Stat. 341) here.)

The new regulation signed by Washington went into effect on May 1, 1795.

The 15-stripe, 15-star flag that inspired Francis Scott Key to write the national anthem, now in Smithsonian’s National Museum of American History

The 15-stripe, 15-star flag that inspired Francis Scott Key to write the national anthem, now in Smithsonian’s National Museum of American History

By 1818, six additional states had joined the union – Tennessee, Ohio, Louisiana, Indiana, Mississippi and Illinois. The decision was made that year to return the number of stripes on the flag to 13 in recognition of the number of original colonies and increase the number of stars to equal the number of states. The Flag Act of April 4, 1818 (3 Stat. 415) (you can read the text here) established the modern rule of having thirteen stripes to represent the original thirteen colonies and having the number of stars match the number of states. It also provided that subsequent changes in the number of stars take effect on the fourth day of July succeeding a state’s admission.

January 8, 1867 – District of Columbia Blacks Granted the Right to Vote

Article 1, Section 8, Clause 17 of the U.S. Constitution as adopted by the Constitutional Convention on September 15, 1787 gives Congress authority “to exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may by cession of particular States, and the acceptance of Congress, become the seat of the government of the United States….”

In 1802, Congress granted the City of Washington its first municipal charter. Voters were defined as white males who paid taxes and met certain residency requirements.

1802 Map of Washington, D.C. by Jones & Moore, Rumsey Collection

1802 Map of Washington, D.C. by Jones & Moore, Rumsey Collection

On April 16, 1862, Congress abolished slavery in the federal district (the City of Washington, Washington County, and Georgetown). This action predated both the Emancipation Proclamation and the adoption of the 13th Amendment to the Constitution.

On January 8, 1867, a bill giving blacks the right to vote in the District of Columbia became law over the veto of President Andrew Johnson. This wasn’t his first veto. In January, 1866, bills were introduced to enlarge the powers of the Freedmen’s Bureau and to extend basic civil rights to negro citizens. Johnson vetoed both bills. Congress was unable to override the Freedmen’s Bureau veto, but succeeded in overriding the Civil Rights Act veto on a Senate vote of 33 to 15. It was the first successful override in the nation’s history. More vetoes by Johnson, and more overrides followed.

President Andrew Johnson

President Andrew Johnson

Eric Foner, respected historian and author of the outstanding book Reconstruction: America’s Unfinished Revolution: 1863-1877 writes about the motives behind President’s Johnson’s vetoes. First of all he was a States Rights man, and loathed the extent to which the Republicans promoted federal intervention. But there was more:

Somehow, the President had convinced himself that clothing blacks with the privileges of citizenship discriminated against whites – ‘the distinction of race and color is by the bill made to operate in favor of the colored and against the white race.’ He also presented the curious argument that immigrants from abroad were more deserving of citizenship than blacks, because they knew more about ‘the nature and character of our institutions.’ Johnson even invoked the specter of racial intermarriage as the logical consequence of Congressional policy.”

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What President Johnson accomplished by his vetoes and blatantly expressed racism was to unify the Republican party. As Foner explains:

Whatever their differences, virtually all Republicans by now endorsed the view expressed by the Springfield Republican after the veto: Protection of the freedmen’s civil rights ‘follows from the suppression of the rebellion….’ The party is nothing, if it does not do this — the nation is dishonored if it hesitates in this.”

January 5, 1903 – The U.S. Supreme Court Decides Lone Wolf V. Hitchcock

This Supreme Court case arose from a dispute concerning the Medicine Lodge Treaty of 1867 regarding the the Kiowa-Comanche reservation in present-day Oklahoma. The treaty guaranteed the Kiowa and Comanche “absolute and undisturbed use and occupation” of these reservation lands and stipulated that in order for any portion of the reservation lands to be ceded to the U.S., three-fourths of the adult males in the tribe had to give their approval.

Oklahoma and Indian Territories 1890

Oklahoma and Indian Territories 1890

In 1900, without Native American consent, Congress passed an Allotment Act that divided the Kiowa-Comanche lands into 160-acre allotments to offer to the Native American residents of the reservation. Those who accepted the allotments were also given American citizenship. The “surplus” lands left after the allotment were to be sold to whites, and the Kiowa and Comanche were to receive about one dollar per acre for these lands. This opened some 2 million acres of reservation lands to settlement by non-Indians.

On August 6, 1901, with the official opening of the former Kiowa-Comanche-Apache (Plains Apache) Reservation (KCA), holders of the “lucky numbers” swept across the prairies in a mad rush to claim homesteads, as the Oklahoma History Center reports, noting that “[m]issionaries on the former reservation, now called the KCA Jurisdiction, lamented the high crime rates, drunkenness, unsanitary conditions, and diseases in [the] rag towns.”

The KCA Indians were now less than ten percent of the total population, but soon found that even what was left to them was being overrun by trespassers and squatters who “adamantly believed that they were entitled to stake out mineral rights.”

Lone Wolf in 1902

Lone Wolf in 1902

Lone Wolf, a Kiowa Indian chief, filed a complaint on behalf of the tribes in the Supreme Court of the District of Columbia, alleging that Congress’ change violated the 1867 treaty. That court dismissed the case. The United States Court of Appeals for the District of Columbia Circuit affirmed the decision. Lone Wolf and the tribes then appealed to the Supreme Court.

In Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), Justice Edward White delivered the opinion of the unanimous court in which it found, as summarized by the late legal scholar Milner S. Ball in “Constitution, Court, Indian Tribes” (1987 Am. B. Found. Res. J. 1, 54, 1987) that “Congress is given power to violate treaties with Indian nations and to exercise control over Indian lands without basis or limit in law.”

Specifically, the Court found that a treaty “cannot be adjudged to materially limit and qualify the controlling authority of Congress in respect to the care and protection of the Indians . . . . Congress has always exercised plenary authority over the tribal relations of the Indians and the power has always been deemed a political one not subject to be controlled by the courts.”

Justice Edward White

Justice Edward White

Justice White gave as his rationale a citation from a previous case [United States v. Kagama, 118 U.S. 375 (1886)] in which the Court argued:

These Indian tribes are the wards of the nation. They are communities dependent on the United States. Dependent largely for their daily food. Dependent for their political rights. They own no allegiance to the states, and receive from them no protection. Because of the local ill feeling, the people of the states where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the federal government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the executive and by Congress, and by this Court, whenever the question has arisen.”

Professor Ball wrote that subsequent Courts continued to consider Lone Wolf “viable and acceptable,” offering examples of affirmations of the finding given by Justices Thurgood Marshall, John Paul Stevens, and Harry Blackmun. (Ball, pp. 54-5)

January 2, 1788 – Georgia Joins the Union as the 4th State

The British colony of Georgia (named for King George II) was founded by James Oglethorpe in February, 1733.

georgiacap

Georgia was one of the Thirteen Colonies that revolted against British rule in the American Revolution by signing the 1776 Declaration of Independence. The State of Georgia’s first constitution was ratified in February 1777. Georgia ratified the Articles of Confederation in 1778, and on this day in history was the 4th state to ratify the current U.S. Constitution. However, it declared its secession from the Union on January 19, 1861 as one of the original seven Confederate states. It was the last state to be restored to the Union, on July 15, 1870.

Throughout Georgia’s history, its capital has moved four times. The cities of Savannah, Augusta, Louisville, Milledgeville and Atlanta have all at one point served as the seat of state government.

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Many assume that Atlanta was Georgia’s capital during the Civil War, but in fact it was still Milledgeville, as it had been since 1804.

Atlanta got its start as the terminus of the Western and Atlantic Railroad intended to link up the port of Savannah with the Midwest. A year after the “zero milepost” was driven into the ground, the area around it had developed into a settlement, known first as “Terminus.” Later the name was changed to “Thrasherville” after a local merchant who built homes and a general store in the area. By 1842, the town had grown to six buildings and 30 residents, and changed its name again, this time to “Marthasville” after the Governor’s daughter. J. Edgar Thomson, Chief Engineer of the Georgia Railroad, suggested the town be renamed once again as “Atlantica-Pacifica,” which was shortened to “Atlanta.” With approval of the residents, the town was incorporated as Atlanta on December 29, 1847.

By 1860, Atlanta’s population had grown to 9,554, but it was still mainly just a railroad junction and regional market town. The Civil War, however, capitalizing on its multiple railroads, transformed it. Soon the factories that had served the railroads began to turn out armaments and munitions, uniforms and armor plating. Soldiers and refugees arrived en masse into the city, as did those who wanted to help them.

Atlanta's train depot before the arrival of Sherman's Army

Atlanta’s train depot before the arrival of Sherman’s Army

As the Union Army made their way to the southeast, the area around Atlanta became a battlefield. On September 1, 1864, Confederate General John Bell Hood decided to retreat from Atlanta, ordering all public buildings and possible assets to the Union Army destroyed. The next day, Mayor James Calhoun surrendered Atlanta to the Union Army, and on September 7, General Sherman ordered the city’s civilian population to evacuate. On November 11, 1864, in preparation of the Union Army’s march to Savannah, Sherman ordered Atlanta to be burned to the ground, sparing only the city’s churches and hospitals.

Atlantatrain station in ruins 1864

Atlantatrain station in ruins 1864

After the Civil War ended in 1865, Atlanta was gradually rebuilt. By this time, there were many who wanted to return there, and it still had a superior rail transportation network. Thus the state capital was moved to Atlanta from Milledgeville in 1868. By 1880, Atlanta’s population surpassed that of Savannah.

Over seventy streets in metro Atlanta are named Peachtree, and many of them intersect with one another. You might think this is because Georgia is the top peach producer in the U.S. But Atlanta grew on a site occupied by the Creek people, which included a major village called Standing Peachtree. Historians dispute whether the Creek settlement was called Standing Peachtree or Standing Pitch Tree, corrupted later to peach. The Creek Indians used the pitch, or sap, from area pine trees for ceremonies.

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Not far from Atlanta is Stone Mountain. This is the site of the largest high relief sculpture in the world, the Confederate Memorial Carving, which depicts three Confederate heroes of the Civil War – President Jefferson Davis, General Robert E. Lee, and General Thomas J. “Stonewall” Jackson. The entire carved surface measures three-acres.

The original sculptor hired in 1915, Gutzon Borglum, left after a dispute and went on to carve Mount Rushmore. A second carver resumed work in 1925 but the management company ran out of funds in 1928. The mountain remained untouched for 36 years.

In 1958 the state of Georgia purchased the mountain and the surrounding land. In 1963, the Stone Mountain Memorial Association chose a sculptor to complete the carving and work resumed in 1964. The work was completed relatively quickly because of the use of thermo-jet torches was used to carve away the granite. Finishing touches were completed in 1972.

Stone Mountain Monument

Stone Mountain Monument

Stone Mountain is also known as the site of the revival of The Ku Klux Klan in 1915. Martin Luther King, Jr.’s “I Have a Dream” speech on August 28, 1963 consequently includes the line “let freedom ring from Stone Mountain of Georgia.”

There have been more than 50 songs recorded about Georgia, including “The Devil Went Down to Georgia,” “Sweet Georgia Brown,” “The Night the Lights Went Out in Georgia,” and “Georgia on My Mind, which became the official state song of the State of Georgia in 1979. “Georgia on My Mind” is ranked #44 on Rolling Stone’s 500 Greatest Songs of All Time.

You can see and hear Ray Charles perform the Georgia State Song here:

December 25, 1868 – President Andrew Johnson Pardons All Confederates

The first Civil War amnesty proclamation was issued by President Abraham Lincoln on December 8, 1863. It offered pardons to person taking an oath to support the Constitution and the Union and to abide by all Federal laws and proclamations in reference to slavery made during the period of the rebellion. Six classes of persons were excluded from the benefits of the amnesty, including any persons known to have treated unlawfully black prisoners of war and their white officers.

A supplementary proclamation, issued March 26, 1864, added a seventh exception (persons in military or civilian confinement or custody) and provided that members of the excluded classes could make application for special pardon from the President.

Abraham Lincoln in November, 1863

Abraham Lincoln in November, 1863

On May 29, 1865 after the war was over, President Johnson issued his first amnesty proclamation, citing the failure of many to take advantage of Lincoln’s earlier proclamation. Under the new terms, Johnson incorporated Lincoln’s seven exceptions from the general amnesty with a few alterations and added seven in addition, including persons who had broken the oath taken under the provisions of the proclamation of December 8, 1863.

A Presidential pardon would restore a citizen to his former civil rights and would also provide immunity from prosecution for treason and from confiscation of property. Moreover, exemption from amnesty precluded people from such activities as the “transfer of titles or properties” and the obtainment of copyrights and patents, making business very difficult. Thus, the President was soon besieged with thousands of applications, and by the fall of 1867 he had granted about 13,500 individual pardons.

President Andrew Johnson

President Andrew Johnson

Two years later, on September 7, 1867, Johnson, desiring to hasten Reconstruction, issued another proclamation narrowing the excepted classes to three.

Less than a year later, on July 4, 1868, Johnson issued yet another amnesty proclamation, granting amnesty to all former Confederates except for the approximately three hundred who were “under presentment or indictment in any court of the United States upon a charge of treason or other felony.”

And on this day in history, Johnson’s final amnesty proclamation (“The Christmas Pardon”) was extended “unconditionally and without reservation” to all who had participated in the rebellion.

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